# Commonwealth v. Caswell

> Massachusetts Appeals Court · June 16, 2014 · 85 Mass. App. Ct. 463

URL: https://www.frixlaw.com/law-library/cases/6464600

## Case

- **Full name:** Commonwealth v. Darren Caswell
- **Court:** Massachusetts Appeals Court
- **Decided:** June 16, 2014
- **Citations:** 85 Mass. App. Ct. 463; 11 N.E.3d 136
- **Precedential status:** Published
- **Opinion:** Dissent by Brown
- **Judges:** Brown, Graham
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6464600

## Opinion text

Brown, J.
(dissenting). To paraphrase some of the language of the Reverend Dr. Martin Luther King, Jr., in his letter from Birmingham City Jail, 1 courts are thermostats, not thermometers. This is certainly an apt description of our role in the realm of *480 closing argument. 2 From the admonition in Commonwealth v. Redmond, 370 Mass. 591, 597 (1976), to the stem warnings in Commonwealth v. Burnett, 371 Mass. 13, 19 (1976), Commonwealth v. Haas, 373 Mass. 545 , 557 & n.11 (1977), and Commonwealth v. Smith, 387 Mass. 900, 903-912 (1983), to the more recent case of Commonwealth v. Beaudry, 445 Mass. 577, 579-586 (2005), and those cases beyond, appellate courts have constantly demanded, albeit with minimal success, thoughtful and careful advance preparation. See, e.g., Commonwealth v. Phoenix, 409 Mass. 408, 426-428 (1991), and cases cited therein. Moreover, a “prosecutor’s closing argument is a ‘vulnerable area in which ... an otherwise well-tried Commonwealth case’ can be reversed” (citation omitted). Commonwealth v. Smith, supra at 913 n.2 (Abrams, J. concurring).
The toxic language here — “vetted by [the] grand jury” — was objected to by defense counsel, and the trial judge incorrectly overruled the objection and then went on unfortunately to bless this grossly unfair and unduly prejudicial assertion — one that was far beyond the permissible bounds of closing argument. Contrast Commonwealth v. Westerman, 414 Mass. 688, 700-701 (1993). In light of the defendant’s objection and the judge’s failure to correct this impermissible comment, 3 the defendant was so unduly prejudiced that he was deprived of a fair trial.
The defendant is entitled to a new and fairer trial. Fair trial means fair, i.e., as close to impeccable as possible. Cf. Townsend v. Sain, 372 U.S. 293 (1963).
This case turned, for the most part, on credibility. In short, the manner in which the prosecutor handled the issue of the witnesses’ credibility was not only careless, but patently unfair. “As we have often said, the Commonwealth permissibly may *481 play ‘hard ball,’ but ‘foul’ ball is inherently unfair and, of course, totally unacceptable.” Commonwealth v. Thomas, 44 Mass. App. Ct. 521, 529 (1998) (Brown, J., dissenting in part).
Concluding as I do, I thus have no occasion to discuss the other claims of error.
Rev. Dr. Martin Luther King, Jr., Letter from Birmingham City Jail, April 16, 1963.
“Defense counsel, likewise, are not immune from criticism; they too must adhere to proper professional and ethical standards. See, e.g., Commonwealth v. Hogan, 12 Mass. App. Ct. 646 , 653 n.10 (1981). See also Commonwealth v. Burno, 18 Mass. App. Ct. 796 , 797 n.l (1984).” Commonwealth v. McLeod, 30 Mass. App. Ct. 536 , 541 n.9 (1991). Defense counsel, as officers of the court, have an awesome responsibility that compels them to act fairly and responsibly in the performance of that role.
Contrast in this regard Commonwealth v. Ward, 28 Mass. App. Ct. 292, 296 (1990); Commonwealth v. O’Brien, 56 Mass. App. Ct. 170, 173-175 (2002); Commonwealth v. Vazquez, 65 Mass. App. Ct. 305, 314 (2005).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6464600. Public record. Not legal advice.